Will Change Fight Can Go Ahead

Divorce is seldom straightforward, especially as regards the negotiation of the financial settlement. The lengths that some people will go to in order to disguise their assets or prevent assets from passing to their ex-spouse are also considerable.

When such arrangements are made, it is usual for future expectations to be taken into account where appropriate, and one of the more common expectations is that one of the divorcing couple will receive an inheritance of significance.

When a couple divorced in 2006, the settlement (which lawyers call 'the financial remedy') was based on the premise that the ex-wife would split an expected inheritance from her mother with her ex-husband 50:50 to the extent that it exceeded £100,000. Such agreements are rare, as a child cannot bind their parent to provide for them in any way, or their parent may die without assets, so there was no guarantee that any such payment would be made to the ex-husband.

When the woman died, her estate was worth £250,000. Her will provided that exactly £100,000 was to be left to her daughter. The balance was to be split between her daughter's children, leaving the ex-husband with nothing should the will be valid.

He challenged the will, based on an allegation that it was a forgery. His challenge was rejected by the High Court, however, on the ground that he was disqualified from making a challenge because he had no legal interest in the will. He was not named as an executor under the will and was neither a beneficiary under it as it stood nor a beneficiary if the estate were intestate: his only right was by way of an agreement with his ex-wife.

The man appealed to the Court of Appeal, which ruled that general fairness mandated that he should be allowed to make a case that the will was improperly executed, and that the lower court's interpretation of the rule that prevented him from bringing a claim was too narrow.

It remains to be seen to what extent this case will have a wider impact. It is worth noting that if the will is judged to have been properly executed, even though it was designed specifically to exclude him from benefiting, there will be no redress for the ex-husband.

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